Alito must avoid being 'Borked' / The lesson of Reagan's nominee is: Say just as little as you possibly can

Published 4:00 am, Sunday, January 8, 2006

Alito must avoid being 'Borked' / The lesson of Reagan's nominee is: Say just as little as you possibly can

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Media critic Danny Schechter was referring to television when he titled one of his books "The More You Watch, the Less You Know." But he just as well might have been describing the trend in Supreme Court confirmation hearings.

Consider Robert Bork, President Ronald Reagan's nominee for a seat on the court in 1987, and the last nominee to be defeated on the Senate floor.

There's still bitterness among Bork's supporters -- who coined the term "Borking" for the destruction of a Supreme Court candidacy -- but the fact is that the Senate and the American people learned much more about Bork than about the nominees who followed him, including new Chief Justice John Roberts.

The candidates, and the presidents who chose them, learned something from Bork's hearings, too.

"One thing the administration learned is not to nominate anybody who has a track record, like me," Bork, now a senior fellow at the Hudson Institute in Washington, D.C., said in a recent interview with The Chronicle.

Another lesson: "The Bork episode drove home how wise it is to keep your mouth shut if you can get away with it," said Vikram Amar, professor of constitutional law at UC Hastings in San Francisco. "That doesn't mean that it's in the Senate's or the country's best interests."

The Bork hearings are a useful measuring stick as the Senate Judiciary Committee prepares to hold confirmation hearings, starting Monday, for Samuel Alito, President Bush's nominee to succeed the retiring Justice Sandra Day O'Connor.

Like Alito, Bork was picked to fill a crucial swing seat on a closely divided court, replacing Justice Lewis Powell. As with Alito, a critical issue was whether Bork would vote to overturn Roe vs. Wade, the 1973 ruling legalizing abortion. Like Alito, Bork was a conservative federal appeals court judge with an extensive written record.

And like the current committee's Democratic minority, the 1987 panel's Democratic majority was eager to paint the nominee as an extremist by confronting him with his past writings.

Opponents described some of Bork's answers as evasive, but in contrast to later candidates, he was candid about his core views even as his prospects were collapsing.

First and foremost, Bork said he rejected the idea of a constitutional right to privacy -- not just for women seeking abortions, but for married couples using contraceptives and for convicted criminals who objected to being sterilized as permitted by Oklahoma law, the subject of past Supreme Court rulings.

Under intense questioning, he also acknowledged that he doubted the Constitution protected women from discrimination; that he believed the court had interpreted the First Amendment rights of political protesters far too broadly; and that he saw no legal basis for past rulings outlawing school segregation in Washington, D.C., or requiring states to treat voters equally when drawing legislative district boundaries.

Much of this provided grist for an unprecedented and controversial opposition advertising campaign ("In Robert Bork's America, ... women would be forced into back-alley abortions..."), but that wasn't what sank his nomination.

The Senate's 58-42 vote against Bork largely mirrored the opinion of a public that had been exposed, to a degree unmatched in American history, to discourse, from the nominee and his adversaries, on the Constitution and the role of the judiciary.

If the Bork hearings -- the first Supreme Court confirmation hearings to be televised start to finish -- were a national civics lesson, subsequent hearings have been lessons in practical politics.

As Senate Judiciary Committee Chairman Arlen Specter, R-Pa., put it at the Roberts hearings, nominees these days disclose only as much as they need to in order to be confirmed.

David Souter endorsed a right to privacy at his hearing in 1990, but he earned his nickname of the "stealth candidate" by keeping most of his other views well guarded. His later emergence as a member of the court's moderate-to-liberal bloc surprised the president who appointed him (George Bush père) as well as many of the senators who confirmed him.

Clarence Thomas, at his 1991 hearing, also accepted a right to privacy while insisting he had never discussed the Roe vs. Wade abortion ruling in law school or ever taken a position on it.

Less than a year later, he voted in dissent to overrule Roe, and in a subsequent case, he denied the existence of a general constitutional right of privacy.

Ruth Bader Ginsburg was somewhat more forthcoming at her 1993 hearing, stating her opinions of Roe vs. Wade and several other major rulings.

But when a past ruling raised an issue that was likely to arise again in the future, Ginsburg refused to discuss it and said she could provide "no hints, no forecasts, no previews" -- a standard that, if taken literally, would leave nominees free to recite their name, rank and serial number and not much more.

Roberts, during his hearings in September, managed to elevate nondisclosure to a virtue. Although endorsing, with few specifics, the notion of a constitutional right to privacy, he embraced Ginsburg's "no hints" formula.

He insisted it would endanger his judicial neutrality to express his opinion about any still controversial Supreme Court ruling.

Pressed to disclose his philosophy and values, Roberts said judges' individual views are irrelevant to their decisions, as symbolized by the black robes they wear. Despite expressing frustration at Roberts' reticence, half the Senate Democrats joined a unanimous Republican caucus in voting to confirm the new chief justice.

Roberts showed that "a judge who won't answer, and cites lofty principles like 'I don't want my impartiality to be compromised,' is hard to challenge," said Indiana University Law Professor Charles Geyh, author of the forthcoming book "When Courts and Congress Collide."

Alito might have a harder time deflecting challenges.

He has been an appeals court judge for 15 years, compared to two years for Roberts, and has written opinions that could draw political fire reminiscent of that aimed at Bork.

Alioto has voted to let a state require women to notify their husbands before an abortion, to strike down a federal ban on machine guns, to set high barriers for job discrimination suits and to uphold a strip search of a 10-year-old girl and her mother, neither of whom was named in the search warrant.

Alito will also face questioning on memos he wrote as a government lawyer in the mid-1980s expressing his personal view that the Constitution does not protect abortion and that the Supreme Court's one-person, one-vote rulings were questionable.

And senators angered by Bush's claim of authority to wiretap some Americans' overseas phone calls without a warrant plan to press Alito about his tendency to defer to government authority.

But in meetings with senators, Alito has drawn a distinction between the positions he took as a lower-court judge or as a government advocate and the open-mindedness he would carry to the Supreme Court. It's a formula that worked for Roberts.

"They can ask him about abortion, and he'll say, 'Precedent is very important' " and avoid specifics, said Herman Schwartz, an American University law professor and author of the book "Right Wing Justice."

People who watch the hearings in hopes of learning more about the law will probably get more substance from the questions than the answers, Schwartz said.

That's to be expected, said Hastings' Amar, who advocated that Senate Democrats looking to crystallize their objections to Alito should focus on one or two issues and show how they affect Americans' lives. "The nominee has no incentive to be a teacher. ... That's really the Senate's job," he said.

Bork said the same choice he faced in 1987 now confronts Alito.

"If he stood up and explained why Roe against Wade was a bad decision, that it had nothing to do with the Constitution ... there would be a debate, and the American people would learn a lot," Bork said.

Of course, the former Supreme Court hopeful added, "He might be turned down."